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tv   Key Capitol Hill Hearings  CSPAN  January 16, 2016 12:00am-2:01am EST

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so, if you look at the way this is going and imagine the conversation that ali suggested we had, from the saudi point of view, you can say hey, washington, what about all these militias iran is arming, training, and equipping and four or five different arab countries? what is your policy for stopping that? and of course, there is no policy for stopping that. when the saudis executed this shiite cleric inside saudi arabia, that was preceded by conversations between the united states, u.s. officials and saudi officials, in which the u.s. said don't do this, this is a provocation, a sectarian provocation that is going to cause difficulty with iran. from the saudi point of view, this was the united states effectively reinforcing iran's
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voice as a representative of shiites around the region. it was the united states saying the iranians have a legitimate say in how we act with the shiites in our country. in effect, and i think lee actually wrote this in one of his columns, this was a death sentence to nimr baqir al-nimr. the only way our voice with the saudis about the way they treat the shiite is going to have any resonance is if they believe we are building a regional order in which they are larger security concerns are going to be addressed and their fear of an expanding iran is going to be addressed. if they believe we are going to help roll back iranian militias, then we might be able to have a
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fruitful conversation with them about what's going on inside their country. but under the current context, it is impossible. host: thank you, mike. one of the things i want to come back to that you brought up, which will play on a point i wanted to come back to with ali is about revolution and the state and if it is possible for the white house to integrate a revolution into regional order. a lot of what we are seeing right now is the result or the function of trying to integrate a revolution into the regional order. but i believe all he wanted to respond to something you said -- ali wanted to respond to something you said. ali: they do point a hidden
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sunnisacy against the in the region. what i see in the middle east is mostly because of indecisiveness in the white house and the middle east policy that is wrong. this disentanglement militarily from iraq, completely prematurely, before the iraqi state was capable of defending itself, before it had the institutions to take care of its own security. i think there is a vacuum of power in the entire middle east that iran was in a better position to take advantage of. they have institutions, the revolutionary guard, and other institutions which serves the purpose of exporting the revolution. this, of course, creates a lot
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of concern among sunni regimes, particularly in saudi arabia which, in this case, is justly concerned about what the united states is doing because it's changing the balance of power in the middle east. if saudi arabia and bahrain continue treating their own populations as second-class citizens when it comes to shia groups, then they would be more open to watch propaganda from the iranian regime. i am not arguing that the obama administration has had the correct policy. i think some of the problems we are seeing are consequences of that. host: let's come into this conversation about whether it is possible. isn't this something that henry kissinger said a while
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ago, that iran has to decide if it's going to be a state or a revolution? one of the things we are coming up against is the fact that in iran, it's really a revolution. and the revolution overwhelms the state. ali: yes, that is the case, and whenever the iranian government is facing exes tension threats, it begins to behave -- you have -- existential threats, you see the rise of people who can charm washington, but whenever that need is no longer there, they are expendable. host: is that what is happening now and what happened with
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taking the sailors? ali: of course, because the revolution survived. the revolution, in particular, has to survive. there are two objectives. first, to humiliate the united states, and second, to tell the world that the revolutionary guard, which is in charge of iran's foreign policy -- and the fact that they were released faster than the british sailors, it's honestly no cause for celebration in washington. if secretary kerry wants to build an arc de triomphe for himself in washington, fine, but -- host: he did say the diplomatic channel is open and see how productive it has already proven. ali: the revolutionary guard is the one in iran making the decisions.
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host: philip, could you give a little more detail about how the revolution -- i was reading an article by one of our colleagues, and she was talking about the nigerian sheik, and i just went to get a little more detail about how the revolution dictates various structures around the world. if you could give us a little more detail about how it replicates itself. philip: there is a model they follow, and it is the lebanese-hezbollah model. there is a military section. there is an ideology of resistance that is always embedded in there.
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it is anti-american, anti-israel. you have all of these things wrapped in the anti-western sentiment they have. the ideology the islamic republic is based upon, often these groups will have that incorporated in the structure. it doesn't necessarily mean they are public about it. in bahrain, groups don't necessarily announce where they are ideologically. you will see inklings of it at times. the february 14th youth movement, which started as a peaceful movement, now they are throwing molotovs.
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.hey've had protests invented by ayatollah khomeini to celebrate the downfall of israel. it never really works that way. in bahrain, you have to remember the shia population, these are not khomeiniists running around. many of these people are independent in terms of who they prefer for their leadership. sometimes they like more radical types. in iran, what they are attempting to do is co-opt that. they co-opt the anger that comes with their distrust and dislike for the regime because of how they are mistreated and they say iran will address our interest.
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and what iran will do is say by the way, why don't you learn weapons? why don't you do an ideological training seminar? i think this gets passed over quite a bit and a lot of analysis. i focus a lot on iraqi-shia militias being formed. not every group follows khomeini. there are around 200 and 50, like a new one every week, but beyond that, what they are doing in iraq right now, they feel secure enough to say they are with the islamic revolution in the region. same with syria. there is a group that a few irgc leaders are calling syrian hezbollah. when you see something like that, they feel far more secure in those environments.
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when you see something like that, they feel far more secure, so it can just come out. in other environments, they are far more patient. they want to pull in numbers and also want to make sure people -- maybe it is more nationalistic. i love the propaganda music, i am assessed with the stuff. in 2006, you will notice that the had a song about victory of the arabs. and then they had in other one where -- another one where they are talking about the feeders of lebanon. this comes in after the destructive war in 2006. now it is all syria. who cares about lebanon?
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they will shift the narrative whatever they need to to pull in more people than they need. i think when we are looking at bahrain, with more covert organizations, they have to be. they had a covert security apparatus with american assistance. you don't always want to come out and say, did you know how many was the best guy ever? they don't want to do that. that is very interesting also, how you would use different messages in different communities, different societies. very interesting. interested inre coming back with this question about revolution versus state, or if you would like to pick up another thread? >> i think it is both revolution in the sense that they explicitly want an international revolution in the middle east in the sense that they want the american dominated system that exists to disappear, and a new
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system in which they are the central player to replace it. ask you something? first, i should point out for the audience about the different articles you have what -- you have written explaining the administration's iran policy. if i could ask you to give some sort of -- did the administration see that they were effectively tilting toward a revolution, or did they think they were going to turn the revolution into a real state? mike: i believe the obama administration sees iran as a ,illar of middle east stability as a partner for middle east understands that it is tilting toward iran in syria. this tilt toward iran is
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happening in kind of a fit of absentmindedness on the part of the americans, or the americans might say we don't what to get inwant to get involved syria, so we are hanging back, and iran is filling the vacuum. we don't need to argue about it, because it doesn't matter, in a sense, what we are trying to understand the dynamics in the region. whether the united states is thinking about the invasion from mars, or whether it is actually thinking consciously about aligning with iran. the same dynamic is taking place, because as ali so correctly pointed out, iran has these institutions and the ability to project its power by building these proxies on the ground that look after its interests. u.s. policy is facilitating the
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expansion of iranian power throughout the region both directly -- i mean, the iranians intervened directly with the russians as part of a military coalition to prop up al-assad. they are also using proxies. we are going to have implementation day on the nuclear deal probably this weekend, could be as early as saturday or sunday, the moment where we start releasing 100 billion dollars to $150 billion to the iranians. if you are sitting in saudi arabia or israel and you see this, and you see the united states about to drop $150 billion on the iranians, it looks like the united states is tilting toward iran. maybe it's not. i believe it is. the iranians play this game of being both the arsonist and the
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fireman. the irtc stirs up problems -- and they are very talented at staying behind closed doors with kerry. saying you know, we understand each other. we have interests. you have interests. we have overlapping interests. they present themselves as consummate players. they say we have overlapping interests. we can cut a deal. right? and the americans believe they are domesticating the iranians, that they are showing them that a partnership is possible, and in doing so, they are elevating the more pragmatic and defensive elements in iranian society.
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what's amazing to me and i'll stop on this point is that everything that happens in the middle east, every time there is some amazing provocation from the iranians we either ignore it or put a ridiculous interpretation on it. for example, right now they are starving the inhabitants of a city in syria. 20,000 people are starving to death. this is a policy of iran. this was going on while the saudis executed the shiite cleric. which issue did we decide was a sectarian provocation? it was the execution, not the starvation of 20,000 to 30,000 p people, which everybody soupy in the region sees as a
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sectarian provocation, of course. very few people, in the american media are aware about this perception in the region and reporting on it. same with the sailors. ali described very accurately, the i.r.g. navy put out the message that we are in charge here, we have the say on what goes on. our white house decides to pitch it as a tremendous diplomatic victory that we got these hostages released within an hour. e -- our news media just repaetz the talking points of john kerry as if it's a deep analysis of what happened without any suggestion that there is another way of seeing this. are you telling me the white house has not really succeeded
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skl are you moderates? will it take more time? will it ever happen -- will it ever happen? empowering moderates? ali: i think what we are most likely to see is that the supreme leader is going to block or disqualify many people to run for parliament. host: will he disqualify romani as well? lf ali: probably not rouhani himself, but his network. what we will see is rouhani being an isolated president, and the body that will appoint the next supreme leader is going to be dominated by regime loyalists, and then you have
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technocrats going back into the shadows. who is, by the way, going to benefit from the money being released because of the sanctions relief? the most likely scenario is that the money is going to be transferred to the economic business empire of the revolutionary guard. -- thegest contracts largest contractor in iran is going to get the contracts. it's not going to be the private sector. they are arguing if you give us the money, we can make the private sector come back into the economy. but in reality, the private sector, moreivate to be than not, is going soft contracts to the revolutionary guard. you could strengthen the irtc control with the business elites of iran. that calculation by the white house, i think has been completely wrong. host: this is how the white
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house speaks about it publicly. you would look very strange if you said we don't care about empowering moderates. we are dealing with extremists. these are hard men around the region. as the president apparently said to a number of gulf arab officials at camp david in may, he spoke approvingly of the guys who get things done around the region. you wouldn't really be able to speak publicly and say look, we have done a deal with the extremists, but in fact, that's kind of what has happened, and a nuclear agreement with the regime locks in the irgc. mike, you and i have spoken about this a bit. do they actually believe they are empowering moderates?
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or are they much more like, we made a deal with the extremists, deal with it? mike: i believe both. it's a deep aspect of american thinking about international politics to gradual,n the moderating influence of international markets. there's a model they have in their heads, and the model is china. the chinese are our rivals. they are building their military. but we also have this economic we haveendency, so changed the calculus in beijing it is worthwhile to challenge the united states, because there are so many economic interests that are hanging in the bounds for the chinese. create conditions in iran that will bring about the same kind of calculus.
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they understand that in the short term it is going to lead to the strengthening of the more hardline elements, but over time, once this money starts penetrating and there is this interdependency, this will change the calculation. plus, there are two interpretations of iran in washington. one sees it as an aggressive revolutionary power. the other says nobody in iran really believes that anymore. the system was set up so they have to pay lip service to it, but in actual fact they are pragmatic actors. president obama has said this in a number of interviews. they are pragmatic. we can cut a deal with them. that is what he is banking on in the end. host: have they lost their taste
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for revolution? ali: the revolution and revolutionary behavior serves their corporate interests. the big difference between iran and china is that when president dixon -- president nixon made the deal, the communist power your -- communist party was firmly in power. the people's liberation army was under total political control. in the iranian case, if there is a one-party system, the party is the party of the revolutionary guard. it serves the interest of the revolutionary guard to be revolutionary, not only to pay lip service, but to practice it once in a while. but whenever the threat from the the threat from the inside is threatening the revolutionary guard, they do
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engage in pragmatic solutions. it's highly ideological and it serves their interests. not to deliberate too long, but what do you think will happen next? what is the regime likely to do next in the persian gulf? philip: i think we are on a low burn trajectory until they want to turn up the flame. they are building groups of the future. host: what would turning up the flame look like? what does that mean? orthey have an interest getting then persian gulf hot right now, or is this more like throwing
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matches in the persian gulf? every once in a while getting people upset and walking it back. what will the next few months, the next year of the obama presidency look like? philip: for starters, i think it will be throwing matches. you have to look at this from a strategic likable -- from a strategic level and their messaging angles. a lot of groups have been expressing their support for groups like hezbollah. they are right now, forming a rhetorical narrative bubble, the islamic resistance is growing. beyond that, the attacks they are doing, which are in good
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part due to security measures that have gone on, have not been that effective, but they are continuing. but it's the low burn. the low burn is effective for now. host: again, i'm not asking you to -- philip: almost randomly. i look at timing. it is interesting that a lot of these other groups were sending anti-american threats. they were going to target a starbucks. target a chili's. target the ritz-carlton hotel. fire rockets at the u.s. naval base. but those didn't really coincide with a big push by the americans in the region. not even really with negotiations. i think sometimes, they might just want to press the button a little bit and say, all right, let's see how they react to this. as therries me is that united states pulls out of this region more -- and again, we are
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in the last year of the obama administration, and this is kind of the trajectory of where it's going. i think they may be emboldened. you look at what's going on in iraq and syria, ground battles are not that great for them right now, but if they feel emboldened, they might try to do something a little more spectacular. but again, i think we are on a low burn trajectory, and they wilkie didn't like that until they really want to start things up. i am sure there are elements on the ground converging with irgc saying we really need to do it now. and they are just saying, not yet. will be a little bit more pragmatic about our revolutionary militarism. but just because you have a revolutionary mindset doesn't mean you can't pursue it pragmatically. when you have revolutionary actors who say ok, maybe we need
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to be a little more patient -- the iranians are very big on supplication when it comes to launching the revolutionary goals. ali: keeping the region on a level of low intensity crisis serves the interest of the revolutionary guard. i do believe it is going to continue. i see that some sunni leaders are playing into the hands of the revolutionary guard. keeping someone detained in prison in bahrain, and there is not a sentence. we see not only a beheading, but i also heard that he was crucified. these are the policies of some sunni leaders. it is hardly surprising that the
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revolutionary guard and radical leaders in iran have an easier time persuading the shia people to follow the path of the iranian revolution. host: why is it in the interest of the revolution of the islamic republic to keep the region in a state of low intensity conflict and anxiety? why are they an anti-status quo power? is it about the united states? ali: in order to increase and spread the influence of the islamic republic, in order to operate more freely, you need a crisis. if they are a well ordered society in which there is no political crisis or social upheaval or suppression of the minorities, then the revolutionary guard has a much
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more difficult times operating in those environments. this is why the revolutionary guards were not happy with the overthrow of saddam hussein. they want a state of crisis in iraq so they can replace the old order with their own people. so that the moderate saudi shia iraqis would not be a part with iraq, so structure in the saudi shia do not cooperate with the saudi regime. so a state of permanent crisis helps them to attract the support of the shia populations. host: mike, again, without asking you to use your crystal ball, what do you see happening over the next year in the gulf region? mike: let me just start by emphasizing how much i agree with what ali said. maybe we could draw a conclusion from this. i do believe the obama administration is looking at
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this mess stretching from baghdad to beirut, and it looks at tehran and sees a stable country that behind closed doors talks the language of regional stability to it, and it thinks wow, if we could just incorporated the iranians into the security architecture, they will work with us to stabilize the region. we don't have to call them revolutionary. they have an interest in stability. the way to think of them is not as pillars of stability, but as actors who are carrying out protection. what do they call with the mafia -- it's a protection racket. they develop instruments to blow things up, and they tell you if you work with us, we won't blow it up. if you don't work with us, we will blow stuff up. that's how they operate. they don't have the money. they don't have the political skill. they don't have the institutions
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to work to stabilize any of these regions. we have sold ourselves a bill of goods, and we've convinced ourselves that they do. they don't. host: i don't want to move to far from the subject at hand, but i believe one of the arguments the administration would make, quietly, about syria, is that they don't like al-assad, but the fact is that without him there will be even more chaos. secretary kerry -- that's why the iranians and that's why the russians have been invited to negotiate over serious future. they certainly do believe that it is a potentially stabilizing influence. mike: again, we have sold ourselves a bill of goods. host: but their argument of what the problem is -- mike: i understand the argument they are making, but it's false. let's say our number one interest is to defeat isis.
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i actually think our number one interest is actually to contain iran, and isis is number two. but how the obama administration looks at it, isis is the strategic threat. we cannot defeat isis unless we have sunni allies on the ground who can help us to take and hold -- that's the important part -- these areas that isis now controls. when we are in alignment with iran and iraq and with the shiite militias in iraq, when we are in alignment with russia and alld in syria, we alienate those forces on the ground. what is russia doing? what is syria doing? they are not attacking isis. they are starving men, women, and children. that's what they are doing. they are dropping chemical weapons on them.
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they are going after the opposition elements that the united states themselves have trained. day that the russians started bombing, during the you in general assembly meeting in september, the russians consciously bond -- bombed elements that the u.s. has trained. what was the u.s. response? john kerry met with the russian foreign minister and started talking about de-conflicting. that sends a message to all american allies in the region that we are not going to back up sunnis on the grounds that we had designated previously as our allies. the consequence is, we are not going to achieve -- and i can say this confidently -- we are not going to achieve our strategic goal of stabilizing the region, and i don't think we
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are going to defeat isis. all of these countries -- it's not that saudi arabia once isis there or turkey once isis there -- wants isis there or that turkey wants isis there, it's that the alternative is an iranian dominated order. if that's the choice, they will muddle through with isis. president obama brags that he has a 65 member coalition with the most powerful countries in the world working to defeat isis for a year now. this is 20,000-30,000 nasty guys with pickup trucks against the most powerful countries in the world, and we don't have a significant victory to show for it, and why? because we don't have a political vision for the region that is attractive to any of the major actors in the region that we used to call our allies. host: let me ask you one more question before i go to questions from the audience.
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ali, it is going to come back to something you were speaking of before regarding the gulf states and their treatment of the shiite communities. i believe the administration has in many ways handled it incorrectly, spoken too much about sectarianism, spoken too much about sunni and shia, and instead, it should see it the way american foreign-policy makers have most successfully seen the middle east, in terms of strategic interest, rather than in terms of sect, right? so, saudi arabia is problematic, but an ally. iran, a revolutionary regime, instead of sunni power or shia power. is there a way, given the way the region is going, not to put it on the gulf states alone, but is there a way to take away some of the sectarian tension or even
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to reduce the way we talk about it here in the united states, which i think is not helpful? ali: the stability of the states, the stability of u.s. allies also depends on how they treat their citizens. that was, by the way, one of the reasons the shaw's regime collapsed in 1979. the problem with the saudis is not that they are not modernizers. they are actually enlightened. they have been modernizing their societies extremely fast, but the process of modernization has not had a parallel process of providing the citizenry with with powers tos, control the government of their own -- a process of democratization. this is why the shaw's government collapsed in 1979. and unfortunately, we see this all over the middle east. this is what the arab spring was all about. the realist argument makes
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sense, but we also should pay attention to the dynamics of the regimes inside the states. host: i certainly agree with that. i guess i'm thinking specifically about -- ali: shia versus sunni. host: exactly. if we could take that language away. if we could just say, look, we are an ally, but we are worried that you are doing this and that. this is a classical part of u.s. foreign-policy and seems like a good idea. how do we move away from the sectarian language? ali: you need to promote democracy rather than talking about different sects because it is also sunni citizens being persecuted by the state. make some political comments in saudi arabia are thrown into prison. they are sunni, not shia. with theissues suppression of freedom of religion.
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those issues make u.s. allies much weaker. and these are good allies. they want to liberalize society. that process, the parallel process, that is creating huge problems for them. in the long term, it's also a problem for the u.s. because they are good allies. that is what we should emphasize, not the sectarian nature of the issues, but the issue of human rights and democratization. phillip: i think both actors are playing the sectarian message. if we talk about how the press handled it. >> the regional press? concerned am not so about that. >> i didn't need to cut you off. but -- ali: it will not be bad. phillip: unfortunately when it
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comes to journalism there is a lot of repetition because people want a narrative and it is easier to convey. if you want to produce an article for some woman living in denver, how else will you describe it? it is hard to get in with all the nice nuances. put this in a bigger picture and say, by the way, here is the revolutionary region on this end. i think also those two entities are promoting their own interests and promoting the message anyway. i think now what we are seeing with their region, this is something i follow closely and there is a monograph for washington, about how iran is manufacturing this jihad as if they were defending a shrine from israelis. it is very hard to pull it back when it starts to embed itself
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in the populous. state thee islamic and supplied with supplies. you go out with one of these man pads and it will send a message to the populous. it is very hard to escape that. this is coming from the administration. a lot of this is response. when you're stuck in a paralysis, how do we handle it and address it to the american people. so this is the most acceptable way. and when you're dealing with entities, particularly the iranian, they know how to deal with it. they know how to get the message out. when we talk about martyrdom information, the timing of it and everything is well thought out. i do not want to say, we need another government department to
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handle this but i think we need a more foresight from this. however they -- how are they presenting it, or should we just roll with it? that is not the best idea. host: that is something that mike work don -- worked on. how the government counters the message. what is the way to take down --s level of secretary and secretary and discourse. or the islamic state. mike: i don't think there is any way to avoid it, but i do not think we should base are onrting -- base our strategy it. you have to be aware of the issues.
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if you do not, you will make bad policy. what we are doing right now in the united states, everybody riotsunderstand if we had in harlem and the united totes worked with the kkk stabilize harlem. and if they said camilla said we said,ve -- and if they listen, this is what we want to do. we are aligning ourselves with those who are starving the sunnis and getting angry with the saudis when they do not like it. it is ridiculous. we have defined sectarianism in the u.s. government, this is sunni sectarianism, there has been no discussion, public discussion at all and very little awareness with the jihad.
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which is sectarianism, but it is also the spread of iranian government influence. militias,create these they arm them, they train them, they offer them report and as -- support, and they in doctrine them. means alternately, what it means practically is submission to iran. what they are supposed to do is all orders given to them by iran and it is very much like the commentary in the days of the soviet union. so if the u.s. wants to tampa is -- break this down, there iran and not iran. iran can have forces in iran,
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syria, so let's not talk about sectarianism. we can talk about geography. we will open it up to the audience. wait for the microphone to get to you. you can wait for it, there in the blue shirt. andalk has been about iran you have certainly neglected saudi arabia. the question is, is the saudi regime strong enough or is it too brittle to confront iran? >> michael? mike: the saudis are any in acult situation --
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difficult situation. they have declining oil prices. they have taken on numerous projects, which are costly and have no end in sight. the saudi's are not going to roll over and hand the region to the iranian and that is a signal they are try to send us very clearly. they are going to fight where they have the resources and ability to counter this rising iranian power. deploy they are going to those resources it is unclear, but the idea that they're going to fold up and have no interest in what happens in syria and neighboring iraq, i think it would be a miss take -- mistake
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to assume that. >> you have had time there and you are aware of their capabilities. philip: where do they put those resources? with yemen, this is not some way with the ethics gains -- this is not simply within the f-15s. with al qaeda, they have actually killed a bunch of them, but they are a good quite of course -- fighting force. what happened in syria? in have syrian al qaeda there. and a number of gulf states are facilitating that. needse need a vacuum, it filled. they are looking for actors that are strong, project and know how to kill enemies. it will not be the u.s. with happy moderation, you know what, they might as well turn to them.
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the second order that comes from it, al qaeda does not like the united dates -- states. if they feel like they have been abandoned, going back to your question on the regime, is it brittle? i do not think so. they are scared. we have a very good security relationship with them. is now what is happening, it collapsing from within. i have seen so many names in the gulf or you will run into policymakers and they will say, we -- they screwed us. what is the result? you share e-cigarette outside -- a cigarette outside, but where do you go? they do not build up so well and we know that. what happened next? they are not really -- there is going to be less considered for
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the american point of view. they will be more worried about what will happen to saudis. groupust watched another go into saudi arabia. they say fine, we will back these guys, they know how to get jobs done. it is something that worries me. i have talked to a lot of policymakers, they are not saying, al qaeda is the best and we love what happened on 9/11. they are not. when you are presented with certain options and you try to pick the worst one, i worry that unfortunately they may come to that decision if they feel pushed into the corner and a by enough byns -- corner the iranians. morewanted to make one point. i agree with everything you just said. but i want to say that i think washington's attitude right now
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is to point out hardships and to hector -- heckle the saudis and suggest they do not understand their own interests and going down a bad cap. -- path. iran --ne, they have this is an existential threat. it is a mistake to think it is not. iran would like to crack up saudi arabia. if they could. we should keep that in mind, because the saudis see a threat and they will act to prevent it. we willfail at that, then have the crack above saudi arabia and what will the u.s. do? will they sit back and do nothing and let chaos ensue? or will the united dates feel compelled -- states feel compelled to send in troops?
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we need to think about that now. that does not mean tackling the saudis, it means organizing something that would prevent saudis from being prebuilt take these actions. host: i wanted to call on a colleague here at heads and, bill. hudson, bill. he has a lot of information about the detainment. bill was in the navy. he understand the details -- understands the details. you can hand it to the gentleman right here. liddy -- ludey. a former naval officer. i have a general question about the administration's response to the two marrying votes -- marine
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.oats and the 10 sailors there seems to be unhappiness in the way that the administration handled the response to our sailors. given that the secretary of defense has confirmed that the , they had anducted navigation error and when to -- went into iranian waters, but it appears the seizure violates to happen three well-established principles of maritime law, the first is innocent passage. ships, whether coastal or landlocked, have the right of innocent passage through waters. in this case, the u.s. marine boats were heading to change a command base, irrespective of they weretion error,
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conducting innocent passage. a normal country would have rendered assistance at sea and instructed them to leave and a send them on their way. the second credible that naval navalncipal that commanders rely on is that of sovereign unity of warships. a sovereign vessels are not subject to search, seizure or detention of the crew. even in traveling in court or in -- -port or in territorial waters, a normal place whatever just instructed them to leave. while we are not technically at , it is clearly prohibited the photographing and filming of confessions or
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apologies for propaganda purposes. this is not a little violation of the law, this is certainly a violation of the spirit. >> i believe tony blair in 2007 when iranians caught british sailors and held them for 13 days, he made the same case. it was a violation in geneva. three principles of international maritime law, these rules are extremely important to u.s. naval commanders. they are vital to the safety of cruise -- crews and the efficiency of operations and they rely on the enforcement and adherence to these rules. why do you think the administration has not even orched or formally protested
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even thrown a marshmallow toward the iranians? host: mike? day, the implementation the nuclear deal is about to go into force and you can rest assured any discussion in the white house when this thing broke was, oh no, this could endanger the nuclear deal and we need to make sure that the deal goes through. we should ask ourselves, not how releasediranians sailors so quickly, the answer to that was they want the money. not that this was a fantastic channel with kerry, it was for the money. with $150 billion hanging in the balance, how come they risked
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taking -- how can they take that and put it at risk? themr one, we have shown that we will not -- we are so hell-bent on achieving the deal that we will not take retaliatory action and number two, it is the revolutionary guards showing iranians and everybody in the region and s that they are -- and us, that they are in charge. even with $150 billion within they behavedse, like this. you think that they will moderate over the next months, you are mistaken. that it i agree with have to do with protecting the plan of action, but i do believe that -- mike and i have about role is to have
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extricated the u.s. from the middle east, not to commit us to more turmoil. i think presidencies that -- president sees that. but whenever it happens, he turns the other cheek. i will not take the bait because this would be a bad thing. the problem is, i think that that does encourage that behavior. actually, i will ask you to round this off. if you can say, in 1988 how did the reagan administration check iranian factions. parallel.w to close a >> when the iranians were laying mines in the persian gulf, we were ordered to sink to major combat and -- combatants and
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that is how we responded. there is a question in back. thank you. >> i have a question picking up i have aing -- question picking up on something that could have been alluded to. is there a realistic vision for restoring stability in the middle east that we can commit ourselves to that does not require the tension of -- extension of -- over iraq? so, how do we do that without the u.s. assuming the central dominant presence it had in 2008? ali: unfortunately, i think that this is a lost opportunity.
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after the u.s. assimilation of iraq mother was a true sense of optimism. not only in washington, but among shiites. of grandhe grandson ,otal of two -- hetollah because he was critical of the regime in iraq. he was preaching a very different kind of the allergy that we are hearing from the mouth of --. and othersiraqi shia who cannot speak freely in iran, because they have the ideology of the state and the state takeover of religion and the right to suppress the divine law. they sought asylum in iraq because they considered it a free place where they can think freely and they can speak freely, but most unfortunately
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because of the guards in iraq, it sank into chaos and the u.s. has returned from iraq and unfortunately we see more or less domination of this in iran. many of the proud schools of theology are now more or less directly or indirectly dominated by money, by theology, by the politics which are dominant in toronto -- tehran . so this is why i am saying, even in the sphere of influence, there should be schools for shias. there should be media, debate, there are many of those who are critical of the regime in iran, so they can find a safe even and debate freely and develops etiology -- develop theology.
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kuwait is not too late. and all those societies we need a little bit of freedom for debate. so that people can express themselves freely. >> thank you. you brought up a big point. host: i can give you a small example. phillip: if you allow for more voices to grow, it makes radicals crazy because they believe their interpretation of shiism is the only answer and everybody else is crazy or not following the religion correctly. so, i was looking at hezbollah, i read an article about the independent shiite in lebanon. drove the that radicals crazy was that there could be scholarship developed in lebanon to teach scholars how
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to do their jobs. the hezbollah tried to control, they aredo now, um, trying to get control of these clerical voices and leadership with money, through force, people are afraid to leave them. even if they disagree. so i still think, i would like to see the united dates promote this -- states, promote this form of thinking among shiite. this is the narrative form of shiism that was going on until -- host: we know exactly what the administration has done and in lots of ways different societies in iran, the administration cut back forms of funding and an limit on -- lebanon, the administration cut off funding
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for different programs they had and did they are very opposed to hezbollah. that is an independent organization and they are opposed to hezbollah. phillip: when you watch this, what do you think it will mean for the future? it is not very sunny. when i look iraq, there is still a good level of control. there is a militia structure. when you are competing against 100 something iranian backed shiite militias that have all of the cash and nobody else's saying, here is some money, political some work, it makes things -- support, it makes things hard. -- whenthe direction shiism was supposed to become the model. had we counter that? i hate saying this but i would rather just get it out there, it
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means the u.s., if we are interested, we need to play dirty. it means backing radical element. some of them will not talk to us. look at all solder who had plenty of problems with the iranians. it, if he is not welcome to -- if it means he will cause problems for the iranians. do we have the stomach for that where we will get in into -- get into every microcosm to save iraq? i think we dropped the ball. host: mike? how easy itot know would be to cry southern iraq -- iran.uthern iraq from it is a rising power and it has influenced, but that is because
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we have not contested it in any way. huge contest it, there are vulnerabilities and we can make number and up to $150 million we are about to give them. and that place to do it is in syria. it is honorable -- vulnerabl.e e. if we topple one, we topple the other. we could give a huge defeat to iran if we started turning up the on them in syria. how many fighters does hezbollah have? seriously, active fighters? not much more than 2000-3000. sometimes you hear 10,000, that is an exaggeration. we could cause them in norma's rmous pain in syria appeared we just need to train forces -- syria. we just need to train forces.
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that would send a message into second. -- in 2 seconds. host: the microphone. >> i have a question about iran. when theent is that they is reduced -- given, people will benefit and the economic trickle-down will make the movement stronger. katie please tell us -- could yo u please tell us, is there any hope this theory has any credit? host: we political scientists have a poor record of predicting revolution. [laughter] host: we did not predict the fall of the berlin wall. ali: we are not able to make those predictions. it is important to know, the
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iranian society is vibrant and it does surprise us. people go to the street and they protest, the interesting thing is that there is james -- the infiltratemanages to organized opposition activity. but this activity is not organized. people go to the street because there is a sense of anger toward the regime. he cannot predict it. this is why the movement became a green movement. now, i do not have, i must say i do not share this argument because the money was -- or is supposed to benefit the iranian middle us. as well as strengthen security? it will strengthen the revolutionary guards. we have seen the budget of the military and the militia, it was
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increased by 20%, this is even before the government got a hold of the money. there was a 20% increase in the military budget. we are likely to see that many of her structure developments, which they will start once they have the money, this will be given to contract firms and they will be hiring private sector actors as subcontractors. that gives more control to the revolutionary guard, not less. been at a, i have debate some time ago, this is -- unfortunately in iran, the spread of technology means no control, so everybody has a mobile phone, but they can control you more efficiently than ever before. so these things need to be looked at critically and do not
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make rash predictions to liberalize the system. i do believe that mr. economy -- rihani is viewed as expendable and the elites of iran are looked at as expendable individuals. they are no longer needed because the deal is old, so you can activate these rebellious elements again. public isranian actually going to rise with this mechanism, this we cannot predict. host: a few years ago we spoke about this. you said they need to be careful because, if this deal comes through, they actually managed negotiations and you will become not useful anymore. they need him -- he will not
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need him as he was. the gentleman in the back. >> josh london with with zoa. in the short term, the duration of the obama administration, we have a pretty good guess that nothing is going to change. what is the time horizon between now and then of things reaching some kind of conclusion? whereas large or small, rather than folks just treading water and the clay usually -- and occasionally flicking matches. they may decide here's an opportunity to seize and hold an d advance. lee: you mean for the islamic republic? >> or for saudi arabia. to say here's our chance. if the u.s. does not want to get
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more involved, or for that matter, in terms of thinking signals and a time horizons, it becomes clear that the white house is going to move into hands that will differ. what do folks see here as primary horizons, given that. lee: we are going to shut down a couple of minutes, so let's make this our last round. if you would like to start? ali: the iranian party is more patient than most of us think. you know, i actually do agree that there is no sense of urgency from their point of view to start the revolution right now. they are patient. they are playing a game which they believe is serving their interests. and also they perceive the united states as a gradually declining world power in the propaganda of the revolutionary guards. but also, in their weekly magazines and journals.
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the united states today is just like great britain in the 1950's after world war ii. it is weakened, and the entire empire is coming down. it has to be replaced. so, they are also being economical in their fights. the u.s. can get entangled in conflicts all over the world -- in asia, in the far east, then the u.s. cannot pay so much attention to what's happening in the middle east. and by the way, if the best card that the saudis and turks can play is al nusra and daesh, the world is going to sympathize more with the islamic republic of iran. so, from that point of view, they believe time is working on their side, they can afford to be patient, to build their self and expand gradually and slowly. this is why we see the saudis in such a difficult to decrement.
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difficult predicament. phillip: i think ali said it perfectly. [laughter] philip: mike, if you say the same thing, i'm going have a real problem. mike: he did speak beautifully. i will add something to it. that is that priority for the iranians right now is shoring up assad. he is still vulnerable, even with the russians there. and as i said, if assad goes, hezbollah power and influence is drastically reduced. their greatest effort is going in to be on expanding his power, and expanding their influence within syria and the umbrella of his power. the americans are pretending that this is not going on,
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or president obama keeps telling us the iranians and the russians are going to work with us to get rid of bush soon. we cannot see it yet. it's not going to happen. they may possibly get rid of bashar al-assad. but they can i get rid of is the structure of the regime, because without that, they do have their influence in the region. it will keep the structure intact. they will not open it up to the sunni majority in the country. it remains the ku klux klan in power. and they will likely keep bashar al-assad, the grand wizard, and power, as well. >> a lovely closing image. thank you. i would thank all of you for coming. thank you to c-span, as well. and a round of applause. thanks so much.
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[applause] >> thank you so much. >> on the next washington journal, we will talk to scott lehman from bloomberg news about the u.s. and chinese economy. and then a discussion of the future of labor unions. we will talk to mark mix, president of the national right to work legal defense organization. washington journal, live with your phone calls, tweets, and facebook comments. >> for this year's student cam
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documentary contest, students are telling us the issues they want the presidential candidate to discuss. here is a tweet from andrew, if grade social studies teacher from winston-salem, north carolina. --ginia congressman tweeted help the students with their projects this afternoon in roanoke. good luck. students from lakeside high school in hot springs, arizona tweeted -- more of our day in the capital. thank you for the tour. todd hagel, social studies teacher at john adams high school in new jersey said -- interviewing this leader for our project about old bullying kerry the grand prize of $5,000. the deadline is january 20, 2016 and the winners will be
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announced march 20. >> the congressional internet caucus posted at the -- hosted a discussion about freedom us each online. they heard from attorneys representing the trip advisor, the federal trade commission, and consumers union. congress is considering legislation that would prevent businesses from penalizing customers that write negative reviews online. this is an hour. tim: welcome. hi, happy new year. i am the executive director of the internet education foundation, which has a few projects. one of which is the internet caucus advisory committee. so, this is the beginning of our
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2016 season, the first briefing of the year. we do about 15 or 16 every couple of weeks or so on different topics. this one happens to be on consumer reviews. the congressional internet caucus itself, we host this in conjunction with them. the cochairs are congressman bob goodlatte in the house, as well as anna eshoo. on the senate side, we have senator jonathan thune and senator patrick leahy as our cochairs. this year, the congressional internet caucus will be celebrating its 20th anniversary, founded in 1996. so, if you work on internet issues, try to imagine where the internet was and where you were in 1996. and you can just see how ancient this particular organization is. so, thanks for coming. we also have a little bit of housekeeping. you also have a flyer for the state of the net conference, which we also produce. that is basically the entire program on internet issues in one day, which is a short walk from here at the newseum. this is on a week from monday, so on january 25. welcome to that.
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and then, to start this thing off, this is called "gagged by the fine print: protecting consumer rights to share our reviews online." and i will just hand it off to the moderator in a second. but if you are on twitter, you can follow this program. @caucusac is our twitter handle. and the hashtag to join the conversation is #consumerreviews. is that singular or plural? #consumerspeech. forgive me. this hashtag is #consumerspeech. so, leading of to miranda bogen, who is our moderator today. she is a fellow with the internet law and policy foundry. she was also our summer fellow last year for the congressional internet caucus advisory committee, and all of our other projects. so, i'm just going to leave it off to miranda. miranda: thanks to the panel. i will introduce everyone quickly, then we will get started. at the end we have professor eric goldman from the high-tech law institute at the santa clara law school in california. we also have brad young from trip advisor in boston. and carl settlemyer from the federal trade commission, the division of advertising practices. very relevant. and george slover, the senior policy council at consumers union.
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obviously, relevant to consumers. it should be a relevant discussion, looking from many angles. starting off, we are talking about consumer rights, specifically protections for consumers to voice their opinions on line in a number of ways. as you see more reviews popping up, there are more opportunities for anyone to share their opinions both with the businesses they are dealing with, but also with their fellow consumers -- hearing their experience to advise people on where to buy.
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this should theoretically be driving competition, because businesses will compete on the quality of services read that is happening. we have seen a lot. but we also see businesses pushing back. we see businesses trying to sometimes silence critical reviews that might hurt businesses. and obviously, they're doing is in a number of ways. they do this through intimidation in various capacities. last summer we did a lawsuit on public participation. saying this is defamation. right now, we're talking today about clauses buried in the fine print of contracts that actually say you cannot post negative reviews of my business online, or you will be fined or held accountable in some other way. so, the kick off the discussion, i want to start with a hypothetical. we can start from there. imagine a family has been saving up to go on vacation. they get to the hotel. they are so excited. they find the room is dirty, the service is bad. the shower does not work. after their vacation, one of the family members leaves a review online saying this is a situation. maybe check out a different place if you are thinking about vacation. they get notified soon after that the hotel contact them,
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saying they violated the agreement you signed with us when you checked in. if you don't take that down, we will find you within the contracts. they could do that. they have your credit card on file. brad, at trip advisor, you see this quite a bit. what is the situation here? how frequent, how can we help consumers navigate these causes? brad: sure. to really set that question, we do not have great visibility to exactly how prominent this issue is.
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the clauses will stifle speech. the best ones we never hear about. they're doing exactly what they intended to do. no one is talking about them, they're not getting fined. they're not getting negative reviews, and the consumer -- probably not happy that they don't get to write it definitely not getting fined. which may be the best of two bad situations. we do know is that in 2015, trip advisor received a coue of thousand requests from our members to remove reviews in connection with statements from these users saying i want it removed because i am being harassed by the business owner. and if some of those situations, they went even further. they provided us with statements either saying there is a cause in a contract that says i'm not allowed to write this, or i will be fined. or sometimes they would even give us a copy of that language. so we do see it. and we definitely know it is a real world problem taking place.
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that said, that is a big number, right? but that is really, we believe, the tip of the iceberg. the reviewer was going to take the step to first write a review, which is probably not everybody. a lot of people are going to trip advisor and reading. someone that will write a review, when they get contact by these people, going on the way to tell us i am taking it down. here is the cause. that is the very proactive minority. i think of it as the iceberg problem -- the 5% above the water. not the 95% under the water. it is a really big problem for consumers and businesses across the country. that is just in the hospitality sector. trip advisor has listings for hotels, restaurants, and attractions. we do not know anything about the mechanics and the doctors and the dentists and the home repair professionals and the big-box retailers. they're doing this, too. but because they do not have a listing on trip advisor, we will never hear about it. it is a real issue, not going away on its own.
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miranda: professor goldman, you have been writing about this for a while, following the legislation. can you tell us what is happening legally, what the clauses look like? why get what happens when they go to court? what is happening? eric: the premise is how can a business stop consumers from talking about them online? thing is a variety of different techniques we identified a few of them. let me make sure we do not miss them. one can we can say the contract that you may not talk about us online. the second way is to set it up as a penalty. you could say if you say anything about us online, or if you say something negative online, we will fine or otherwise create an incentive -- hold back your security deposit.
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and also, people do not pay the fine, the threat is filing a negative report on the credit report. the business will then say i am going to ding your credit because you did not pay the fine for having talked about us online. the third way we see it is by using some form of intellectual property to take control of the review. the most common of those approaches is to say that the consumer assigns the right to review to the business. the business becomes the owner of that review. they can decide whether or not they wanted to be published further. each of those techniques shows up. there are others that we have seen. and there are certain the others that will be invented. and we have not seen a lot of challenges over these. in my estimate, millions of americans have signed some type of provision like this. we have seen a very small number of challenges in court.
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even fewer final resolutions. when we have had these types in court, generally, judges get the point. they say you cannot do that. and i will find a way to work around the contract issue or the consumer law issue or the intellectual property issue, to make sure you cannot do what you want in this. as brad explained, that is the iceberg problem -- the top ending up in court. and there are a lot of things happening before we ever get to court. i want to call attention to one particular case that i find interesting, very relevant and hypothetical breed it was a case involving a vacation rental/ the landlord said to the renters, you may not review us online. and we do not know how many people did not review them online, how many people were chilled by that. but we do know two left negative reviews and were soon. in court, the cases end up in my mind is when the court says that
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review is not defamatory. landlord, you have no right to sue for defamation. but you might have a right to sue for breach of contract. that sounds like a breach of contract. i like to think homer heads will prevail. but this is the reason why we need to pay close attention. it could be in front of a judge for breach of contract. but we know better. miranda: thanks. we had a business perspective and illegal perspective, what do consumers think about this? what are you hearing from the victims of this? they go on websites and click i agree to these terms, i don't think any of us really read those, unless you are in law school or a lawyer and get a kick out of that. if know this is even happening? >> thanks, miranda. when i heard about the problem of water called non-disparagement or gag
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clauses, my first thought was, hey, those are the folks we care about. which is everyone in this room. everyone who has ever bought something from everyone was ever had something bought for them. we are all affected by this problem. one of the most important ways consumers get power in the marketplace is word of mouth. that is key to making sure the competitive marketplace works in the interest of consumers. and the internet obviously enhances that consumer voice. and non-disparagement clauses are a direct frontal assault on that consumer voice. the problem is bigger than just silencing negative reviews on the internet, although that is kind of the reason we are all here today. these non-disparagement clauses, when they are signed, they cover all communication. all the way from putting an advertisement in the paper to potentially talking with neighbors and coworkers about an
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experience you have had. so, my second thought was, hey, that is us. i work for the policy and advocacy arm of "consumer reports." for 80 years, we have been in the business of testing products and services and publishing objective, independent, expert ratings in our magazine. and now, in our online publications. we buy the products and services that we test for quality, safety, and durability in the regular marketplace anonymously, as ordinary consumers. that is a key part of making sure we are not getting special treatment. that we are getting the product or service the same way consumers are. so that we can tell consumers what they can expect to experience if they buy it. so if a purchase contract contains a non-disparagement clause, the business could threaten to silence us. to stop us from getting the
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straight, objective story to consumers. the further irony is that many or even most consumers who sign consumer sales agreements do not even know the cause is in there. and yet by signing or by clicking an i agree button, they supposedly agree to be bound by it. contract law says they are bound. even for consumers who do know that it is there, they typically have no choice if they want the product or service. and the salesperson typically has no awareness or appreciation for what is at stake here. it has become just a routine part of the sale. so, we are very glad the senate took of this problem and passed legislation to fix this. to safeguard the consumer voice with overwhelming bipartisan support. by committee and by unanimous consent on the floor, we hope the house will now follow in the weeks to come.
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>> miranda, can i add something? just on the contract, unquestionably, the restrictions on consumer reviews will be buried in something that consumers are not likely to see. but i don't think that is a helpful way of thinking about the problem. i really think -- let us assume that consumers assume exactly a given full and unambiguous disclosure. it was still something that is unacceptable to agree to. carl: i'm an attorney with the federal trade commission. the commission is not formally taking a position on this particular legislation. i can tell you what the commission has done in exercising authority under section 5 of the ftc act, with unfair actions in commerce. the commission has challenged
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recently the practices of a company which has been selling dietary supplements for which it was making exaggerated and unsubstantiated weight loss claims. and couple that with the practice of offering to pay customers for positive reviews and have the fine print in the contract restricting them from having negative comments, and they have actually been suing people for making negative comments, threatening people when they complain, or they file a complaint with the better business bureau. the commission basically challenged that practice of using these threats and gag clauses of being unfair within the meaning of section 5 of the ftc act. so, that means that the practice of using the provisions cause s consumers substantial entry they cannot reasonably avoid, and there is no countervailing benefit that outweighs that injury. which is a long way of saying that this basically is a
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practice that distorts the marketplace. it damages consumer welfare. and the emphasis of the case is not so much the fact that the provision that it is buried in the fine print. it is. but the fact that this practice will deprive the marketplace of truthful information, truthful negative information that will be to the detriment of other consumers who come after us. so, we are not even focusing on the harm directed to people who have clicked through and whose opinions are being suppressed. we are looking more
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holistically at the impact this has on future purchases, who are deprived of negative information about that product and you may end up paying more for a product than they would if they knew the truth about what the experience was prior. they may be buy products products that are not good for them. overall, it is bad for the entire ecosystem to be related by having them basically being suppressed. miranda: carl, when you come across these issues and you find that the clauses are unfair under section 5, what does enforcement look like? carl: we have had very little occasion to have enforcement against these type of things. i mean, the lab is notable because it was not going out of business when confronted with these things. which a lot of companies had been. they were actually suing people for breaching these clauses, allegedly. and in addition to counts for defamation. and so forth. did, we went to federal court in tampa back in october. we got a preliminary injunction.
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the judge's ruling in this case, at this point, it is still in litigation. the trial is scheduled for another year. but the judge did not rule directly on the unfairness. but he did rule that the company would not be permitted to enforce these types of contracts, not be permitted to use these during the pending litigation. specifically, what the court found was that in order to squelch comment and public discourse, the lab has threatened to sue consumers by threatening criminal sanctions and civil actions. and financial loss for their comment. and as a result, in the context of this case, what is minimally necessary to ensure that the continued practice of making unsubstantiated claims while this case is pending about the weight loss attributes of the products is an injunction that would constrain the prior practice of threatening to sue
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and theirfor products comments. we have a favorable ruling, but it is limited in context. and the unfair analysis under section 5 is very fact-specific. so, while we feel like we have a very strong case here, we have got an expert opinion -- a professor from temple university we submitted that preliminary injunction paper. we have a lot of precedent about use of bars on comparative advertising. between competitors, there is a lot of support for this. but whether or not this case would map onto other circumstances is an open question. in fact, whether the judge will rule in our favor is another question. brad: can i just jump in on one thing?
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carl just laid out two very serious harms. the censoring of the reviewer and stifling free speech, as well as the harm on all future consumers for having accurate information to make the personal purchasing decision. i would argue there is a third harm occurs as well, to all of the competing businesses that are playing by the rules with that unscrupulous company. a number of sites, trip advisor being one, yelp, a lot of companies have algorithms that are going to either stack rank these companies or give consumers the ability to compare them directly. all of a sudden, when you know you are playing by the rules and doing everything right, and a the street is inserting unconscionable clauses, the small business is getting hurt, as well. there is a variety of victims of these causes. miranda: and the other court decisions, eric, are they helping move the issue forward?
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or are they looking at these issues do narrowly? what is going on in that sense? carl i liked the way framed it. in order for the ftc to breach the behavior, they had to rely on the unfairness authority to the fine. although, when i see the ftc, wise to wonder why they did not realize they are being deceptive. then i have to go persuade a judge, and they still have not been able to resolve that. we could also imagine that under contract theory, things like unconscionability might strike down the context. there is a series which can be used to combat these in court. but they are not hitting the nail on the head with the hammer perfectly. they are trying to fit into
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existing formats. that is one of the reasons i favor a new existing law because we will remove any of these clouds that exist over these existing ways in which the clauses are being invalidated. we would get a perfect tool that would tell everybody stop. miranda: that is a great segue because the senate passed the consumer review freedom act just a few weeks ago. it was put forward by senator others.d a few we have representative issa here. i was wondering if you wanted to make a statement? you aretative issa: hitting the nail on the head. which is any time the executive branch relies on laws not intended to cover a new or different claim, we run into the
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problem of the first branch is often complaining that they are exceeding their authority, it is overreach. in this case, it is a reach that needs to be addressed. the tools that we have given even the federal trade commission and so on are inaccurate for all cases. even, as you said, if they work in a couple of cases, it is a long adjudication. you have to find out if that square peg fits. when in fact, with the exception of a willing buyer, willing seller entering into a contract, when they truly perceive something for limiting their free speech, free speech should be presumptively an absolute right. and these contracts are invalid because they are not delivering a reasonable limitation on free speech. and that is one of our goals, if you enter into a medical testing situation in which you agree that in return for entering this program, you're not going to talk about it, that is
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historically reasonable. if you enter into a confidentiality agreement in which a trade secret is told, there is a reason. but in the case of simply companies who only want good news, and want to find a way to gag bad news, that is where we have to have a broad and sweeping law that simply says you do not have to go to a federal agency, you have a right to do it and no contracts shall be valid if it limits that. miranda: do you want to talk to the content of the bill? representative issa: the panel -- we want to know the problems, and both the house and senate ask if we are being brought enough on. because our challenge is we want to be broad enough not to have agencies having to enforce it, and not having judges go through an entire trial.
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the committee should be summary judgment, as you do not have a right to limit speech, particularly when almost every company, and i'm a former businessman, every company finds a way, especially weight loss, tell somebody talk about how great the product works. it is inherently deceptive if it does not work for somebody to limit that speech. that is exactly -- that is why one of those poster children, we understand that if you've somebody saying something works, you absolutely should not be able to limit someone saying i used it and it does not work, it is inherently wrong. the same as every restaurant that posts multiple stars and all the right words. let us be honest. they post the award and not post the criticism. that is what we are hoping to really change. but i think the one thing that i am hearing, and i wanted to listen, is we keep asking are we creating a law that creates litigation and administrative action, or are we creating a law that limits the reason for the
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administration to have to weigh in, and clearly limits cases from going through the courts for protracted length of time. to try to understand our legislation. and i think senator thune and i both feel strongly that the latter is what we have to achieve. the thing that is clear and simple, that reiterates the first amendment is the first amendment when it comes to saying you do not like something. recognizing that you must state you do not like it from you cannot in fact falsely claim something, and that balancing act is where we have been for 240 years. please continue. i did not intend to become a part of this. [laughter] george: i will speak briefly to that. we have taken a careful look at
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both the house bill and the senate bill. we like them both. the primary difference is which enforcement agency is constructed as the repository for enforcement at the federal level. we think it creates the right boundaries, not only giving a specific enforcement authority against the practice, but also nullifying enforcement of these clauses from the get-go. and leaving open the potential for malicious or false reviews that are damaging to a legitimate operation for being appropriately remedied in a court process, like they have been historically. we are very pleased with the bill. miranda: i think some criticism of legislation like this is that it takes away tools of businesses to protect their reputation. i know in the strategic losses against public participation issue, there was some concern about access to justice. eric, what do you think about this legislation? is it narrow enough, doesn't
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address the issue in the right way? eric: it is particularly well constructed on trying to cover all the different tricks that we've seen businesses engage in. we've seen the contract, we have components.e the legislation very helpfully covers all of those. the one place i flagged is the potential area that they can get frisky is this boundary between protection of trade secrets and calling every interaction with the customer a business' confidential information. that could be a little bit of a wedge. i think the law would do a terrific job of sending the right messages to court. if you see a clause like this, tell the business to stop, get out of our courtroom. the only other way to be improved is not structured
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within the bill but campaign and with the federal anti-flap law. the case should end early, and there should be a fee paid by the plaintiff. if any business is foolish enough to go to court, we have a fast lane to as the case early, and the business would have to pay the attorney fee. brad: i totally agree. i wanted to come in on something he said. making the right law that will not lead to more litigation. if we are talking about consumer reviews on internet platforms, giving us a tool like federal legislation that is not patchwork, state-by-state or ruling by courts. just saying across the united states, just take a look at this law. informing both our reviewers and the businesses the status of the
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legal premise around reviews right now. that would cut off litigation really early before the complaint even gets drafted. right? the first bullying e-mail or harassing message. it would be hard for plaintiffs attorney to sign their name to a complaint knowing that this law was on the books. favored sanctions against attorneys, which is a section on the attorney. the other fee shifting is a little broader. it is more of a plaintiff to defendant. brad: i'm not endorsing sanctions. this has to be the attorney's as much as saying the law is built
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and drafted from our point of view. that would be putting the attorney on they start to draft the complaint. once the client has been alerted from a platform like advisor or angie's list, you cannot bring a lawsuit based on these clauses. it is not legal. i do not think there is any chance you will find any ethical attorney who will sign such a complaint. i'm not talking about the remedy as the professional responsibility draft. >> in many cases laws are challenged to plaintiff lawyers. ok, how can i get around it. one of the constraints of the bill is it is very tricky even for the most clever claims lawyer to come up with a way around the bill. i think it is one of the strengths. miranda: that sounds like businesses are pretty creative in finding ways to either scare consumers into not posting reviews or putting clauses to get them to take it down. i'm wondering, from george, are there other issues consumers are facing online when they are dealing with these contracts, maybe carl, what are some of the other complaints you are seeing with businesses that are in the
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vein that we should be aware of with/and anti-disparagement clauses going hand-in-hand. other other ones we should be thinking about? slape: briefly, on the suits, we have taken a look at that bill, as well. we are sympathetic to the issues there and the similarities about how that can be abused. we think there may be some scope problems in the way that the bill is currently constructed. we think it needs to be given a closer look. but we think that is an issue worth looking at, definitely. none-disparagement clauses are simply one of the more recent anti-consumer additions to the standard form, boilerplate consumer contracts that business legal teams draft and are constantly tinkering with and revising and adding to. to stack the deck further and further against consumers. by pulling the rug out from
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under their basic legal rights and protections under common law. another example of unfair fine print is a clause under which the consumers supposedly agrees not to ever take the business to court, no matter how harmful and widespread its misconduct might be. instead, the consumer supposedly agrees to take any complaints to a private arbitrator, typically often hand-picked by the business and already familiar to it. and who is not even required to follow the law. and there are often other accompanying restrictions and requirements that make bringing the claim and arbitration so inconvenient and costly for the consumer that it cannot be justified. and so the business gets off the hook, even for potentially widespread and egregious conduct. again, this problem goes beyond the internet. but signing agreements digitally
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makes it worse, in that it is harder as a practical matter to know what is in the agreement you are signing. i do not want what i said earlier, what i am saying now, to be misheard as saying the main problem here is that it is a surprise to consumers. i agree with what everybody else here has said, is a problem because it is unfairly pushing the consumer to a place where they are giving up fundamental legal rights and protections. but i think the surprise is an additional harm and an additional factor. the last time i got a new mobile phone, we were wrapping up the purchase, the salesman handed me his digital machine, and the electronic pen, and showed me where to choose the box saying i agree with the terms of the sales agreement. which the box also said that i had already read and fully understood. when i asked him if i could see the agreement, so that i could actually read it, he said he did
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not have the agreement available in the store. so, out of curiosity, i told him i needed to see it. i asked him to get it from wherever. he had to call corporate headquarters. their legal department. it took more than half an hour of waiting with my wife and two impatient, fidgeting teenagers. how many consumers are going to go through that? the agreement was 50 pages long. how many consumers will read that and be able to understand? non-disparagement clauses and forced arbitration clauses are two of the many one-sided provisions things slipped into the fine print of standard form boilerplate, take it or leave it consumer contracts that are taking away the consumer's voice and the consumer's basic rights and protections.
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we are working on that bigger issue of unfair fine print, and there are a lot of issues that need to be looked at and sides of the data be examined. but while we keep working on that bigger issue, i hope we are ready to start now by ending the use of non-disparagement clauses, by seeing this bill enacted in the coming weeks. i am happy to answer anybody's questions about that bill. feel free to give me a call. we are here in town. and we're happy to talk to anybody. miranda: we'll leave time for questions at the end in a few minutes. does anyone want to comment on sort of other consumer issues you are seeing, things you are hearing from individuals who are engaging with these businesses, or any particular cases that hit home with the anti-disparagement clauses that you have seen that brought this issue to light? brad: sure. thinking about some of the cases
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of clauses that have taken place recently that i think are interesting more alarming. the first one, professor goldman's book earlier, where the judge granted the motion to dismiss saying that they reviews were not defamatory, but allowed the lawsuit continue based on the potential breach of contract, which was very alarming. allowing contractual language to trump honest, reliable speech. another one that made a lot of headlines was palmer versus clear year case a couple of years back. ms. palmer actually testified to the senate congress committee in connection to the bill. for those who are not familiar , she purchased a $20 item from an internet retailer, and the item never showed up.
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i believe she canceled her order, and she wrote a negative review on a website. fast-forward one or two years, all of a sudden, clear year noticed the review and reached out to her and told her that they were going to put a fine against her for violating the non-disparagement clause for no negative reviews that was in their terms of service. there was even a question of whether they had revised their terms of service to add that after the fact. it was really bad fact, quite frankly. when the palmers rightfully did fine, theyt $350,000 reported it to the credit agencies who reported it. the palmers' credit dropped him and she listed a whole host of actual impacts on their lives on loans they could not get an actual impacts they felt financially because of this one review. they were fortunate enough to hook up with public citizen who took their case on on a pro bono
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basis -- that is not something that most people could have done. most people in that situation would end up with ruined credit and she was able to adjudicated in the courts through public citizen. i do not know of any assets that were recovered were made whole. the other case that i think is interesting was adjudicated more to the court of public opinion than the actual courts. two summers ago, in the summer of 2014, it was noticed that a small b&b in upstate new york, in hudson valley had included in their contracts of brides and grooms a clause that said along the lines of we know that brides and grooms love us here, but your guests may not know how awesome we are. control your guests. if any of your guests write
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negative reviews, you will $500 -- you will pay us $500 for each review. it is coming out of the security deposit your already gave us. unbelievable. now we not only trying to exercise prior restraint on an individual speech that you have a contractual relationship with, but everybody that they know in their family as well. the "new york post" picked that up, and ran a story on it. and within about 12 hours, guilt yelp and trip advisor were getting flooded with reviews and comments of this place. those are not firsthand reviews, so they did not meet the .uidelines to get published but the population of consumers spoke very quickly and very loudly, saying that is violating social norms. that is violating what we're expecting out of business relationships. i think it is really instructive
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as to what the american >> one other dimension, they were using language that was different versions of their agreement would have not just the right to sue you for leaving a negative review, but they also said that the $480 that you pay for this fiber product that we are cleaning will give you dramatic weight loss, that price is actually a subsidize discounted price, and really the full price is $1500. and if you breach the contract, including a negative review, we can immediately charge you the balance of the full price and the commission alleged that that was deceptive straight up, without having to get into the fairness doctrine.


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